Citation Nr: 9923260
Decision Date: 08/17/99 Archive Date: 08/26/99
DOCKET NO. 94-18 138 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased evaluation for residuals of a
chemical burn to the right side of neck, including scar with
keloid formation, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Counsel
INTRODUCTION
The veteran had active service from November 1975 to
September 1982.
The appeal arises from a rating decision dated in October
1993 in which the Regional Office (RO) denied an increased
evaluation for the service-connected residuals of a chemical
burn to the right side of neck, including scar with keloid
formation. The veteran subsequently perfected an appeal of
that decision; and the Board of Veterans' Appeals (Board)
remanded the case in March 1997.
According to the Board's March 1997 remand, the veteran was
represented by Disabled American Veterans. However, the
claims file includes a Department of Veterans Affairs (VA)
Form 21-22 (Appointment of Veterans Service Organization As
Claimant's Representative) appointing the American Legion as
the veteran's representative in November 1997. In an
informal hearing presentation dated in April 1999, the
American Legion argued that the change in representation was
not proper because it was executed over 90 days after the
case was certified to the Board for appellate review. Review
of the claims file discloses that the case was originally
certified for appeal in September 1996 and again in February
1999, after the remand was issued. According to the
provisions of 38 C.F.R. § 20.1304(a) (1998):
An appellant and his or her
representative, if any, will be granted a
period of 90 days following the mailing
of notice to them that an appeal has been
certified to the Board for appellate
review and that the appellate record has
been transferred to the Board, or until
the date the appellate decision is
promulgated by the Board of Veterans'
Appeals, whichever comes first, during
which they may submit a request for a
personal hearing, additional evidence, or
a request for a change in representation.
Any such request or additional evidence
must be submitted directly to the Board
and not to the agency of original
jurisdiction.
The date of mailing of the letter of
notification will be presumed to be the
same as the date of that letter for
purposes of determining whether the
request was timely made or the evidence
was timely submitted.
After reviewing the claims file, it does not appear that
copies of any letters notifying the veteran that his case was
being certified to the Board are of record. In the absence
of a letter notifying the veteran of the requirement to
change a representative within 90 days of certification of
the case to the Board for appellate review, the Board finds
his change of representation in this case was timely. Thus,
the veteran's current representative is the American Legion.
REMAND
In a VA Form 9 (Appeal to Board of Veterans' Appeals)
received in April 1994, the veteran indicated that he wished
to appear at a hearing before the Board at the RO. However,
a hearing was later canceled because the veteran was
incarcerated at that time. Since the case was remanded in
March 1997, the veteran has informed the RO that he is no
longer incarcerated. The Board also notes that the veteran
has appeared for VA examinations since the case was remanded
in March 1997. In a VA Form 1-646 (Statement of Accredited
Representative in Appealed Case) dated in February 1999, the
veteran's representative noted the veteran's earlier request
for a Board hearing at the RO and essentially requested that
the hearing be rescheduled
as the veteran was no longer incarcerated. Under the
circumstances and in order to ensure due process, the case is
REMANDED to the RO for the following action:
The RO should undertake all necessary
action to properly schedule the veteran
for a hearing before a member of the
Board at the RO.
The case should then be returned to the Board. The Board
intimates no opinion as to the ultimate outcome of this case.
The veteran need take no action until notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
JEFF MARTIN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999).
This remand is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).